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Arguments in the case against three Jamaican televisions stations being sued for their refusal to carry an ad promoting tolerance towards homosexuality wrapped up Thursday. You can view the ad here.

The case is the first test of Jamaica’s new Charter of Rights which came into effect in 2011, and is therefore of great interest.

Justice Paulette Williams told the court at the end of arguments that “in an ideal world we would be able to meet and discuss and commit to paper our decision in short order.”

She said however that since the three members of the panel have additional court fixtures until the end of this court term, which ends on July 31, they will not be able to issue a ruling before the end of the term.

Following the six-week recess during summer, she said the court will be closer to giving a decision when the Michaelmas term begins.

Solicitor General’s Submissions

Solicitor General Nicole Foster-Pusey, Q.C. completed her submissions to the Court. The Solicitor General is involved in the matter as it is a constitutional case, and was not advocating for any side, but was presenting the results of her office’s research and conclusions on the legal issues which have arisen.

She looked at the use of the word “media” in section 13 (3) (d) in the Charter of Rights regarding the “right to seek, receive distribute, or disseminate information, opinions or ideas through any media.” You can read the Charter here.

She submitted to the court that the word is used to mean “the various means by which views can be disseminated, whether by electronic media, print, blogs, etc”

Justice Sykes: “Are you saying that (operators of) radio, TV, newspaper would have no greater right than ordinary citizens by way of expressing themselves?

Mrs. Foster-Pusey: That would be our position. The constitution provides the right to disseminate (information) through any media. It was felt that this would give broader protection (than a provision for freedom of the press). The media had wanted freedom of the press but it was believed that would be limiting. We believe freedom of dissemination of information is a sub-set of freedom of information.

Are the Defendants bound by the right?

The Solicitor General referred to section 13(5) of the Charter as an “interesting and new” (provision). This is the section that states that:

“A provision of the Chapter binds natural or juristic persons if, and to the extent that it is applicable, taking account of the nature of the right, and the nature of any duty imposed by the right.”

“It is our view that it was the clear intention of the Joint Select Committee (of Parliament) that rights would be upheld not only by the State but by any other person or body,” the Solicitor Geeral told the Court.

“This is one of the major changes (effected by the Charter of Rights). The rights were previously solely of vertical

application (could only be enforced by citizens against the government). It is now clear that to the extent applicable, that a person can enforce the rights not only against the state but also against other persons and organisations,” she said.

This has been one of the points argued during the case, whether the Charter now provides for so-called horizontal application, allowing one citizen now to sue another, or only vertical application. TVJ had argued that the Charter did not provide for horizontal application, or if so, that horizontal application did not apply to the rights involved in this case, freedom of expression and freedom to disseminate information.

“We believe that the nature of the right is such that it can be applicable to private persons having duties to each other,” said the Solicitor General, however.

Justice Sykes: (If) one private citizen has a right not to speak, would it be fair to say another private citizen cannot compel this private citizen to speak and disseminate information? I may wish to get my message out and another private citizen may have other better means of communication. In what circumstances could I compel him to speak?

Mrs. Foster-Pusey: That’s the very delicate matter to be decided in this matter. We have not been able to arrive at a specific formula to be used by the court in balancing the rights.

Justice Williams: You are reluctant to identify any (over-arching) factor?

Mrs. Foster Pusey: It will be necessary for the court to arrive at an “all things considered” result.

Justice Sykes: Would it be a fair reading of section 13 (5) to say that there is no duty imposed by the right, then it is difficult to speak of a beach of the right, so if section 13 (3) (d) (the right to disseminate information) imposes no duty on CVM and TVJ, how do we get to a breach?

Mrs. Foster-Pusey: I would think there are duties on every private individual. The press has been put in a particular position, (because of) the nature of the power they have. The extent of the duty and the manner in which the court

should interpret its exercise where a person is putting forward a right not to speak – that is the difficulty here.

The press has a duty because of their power, but they also have a right to say “I do not wish to speak in this matter, or to have my property used (by another) to speak.”

“The right of (TVJ and CVM) not to broadcast (something) is part of their right of freedom of expression,” she told the court.

The Claimant, she said, is also bound to uphold the rights of the television stations.

The thrust of the Solicitor General’s submissions is that both the television stations and Mr. Tomlinson have the rights to freedom of expression and freedom to disseminate information through any media. In the case of Mr. Tomlinson, this includes the right to have his message broadcast, and in the case of the television stations, the right not to broadcast something they do not wish to air. Both parties have a duty to uphold the rights of the other. The court will therefore have to carry out a balancing exercise to determine whose rights should prevail in such a situation.

She also submitted, however that while Mr. Tomlinson’s right to disseminate information had been restricted in terms of using the channels provided by the TV stations involved, there would be a “plethora of other media unaffected and in respect of which there’s no complaint.”

Justice Williams: Is there a place for pattern of behavior (to be considered in the balancing exercise)?

Mrs. Foster Pusey: I would not say so, the focus should be on what was sought, what was the impact, the facts before the court.

She also suggested that role of the media be considered in the balancing exercise, citing the South African case of Khumalo ( a much cited case in this matter) in which the Constitutional Court said that;

“In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.”

Justice Sykes: I see in the cases (reference to) a constitutional duty. How do we get there in light of a private business established for profit? How do we get to a duty, because if he wishes, he can get out of business.

Mrs. Foster Pusey: It is a fact to be taken into account in the balancing exercise, especially since it has been directly raised (for instance, by CVM). (The court will have to) determine that issue and determine the weight to be placed on that issue.

PBCJ

Unlike TVJ and CVM, PBCJ is a state-owned entity. This means that a different provision in the constitution applies in respect of its duty to uphold rights and the relevant allowable restrictions to be placed that duty.

Whereas section 13 (5) that would be applicable to non-government entities speaks of natural or juristic persons being bound to uphold the rights set out in the Charter of Rights “if, and to the extent that it is applicable, taking account of the nature of the right, and the nature of any duty imposed by the right” in the case of a government entity the relevant provision is section 13 (2) which states that government entities are bound to the extent:

“demonstrably justified in a free and democratic society.”

The Solicitor General pointed out that since PBCJ is prohibited by law from accepting paid advertising of the kind that had been offered by Mr. Tomlinson “it would be difficult to go further to say there has been a breach unless there is going to be a challenge to the legislation itself.”